Butt v The Queen
[2012] NZCA 96
•19 March 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA569/2011 [2012] NZCA 96 |
| BETWEEN KAMAL JONATHAN BUTT |
| AND THE QUEEN |
| Hearing: 12 March 2012 |
| Court: Stevens, Chisholm and Heath JJ |
| Counsel: P E Dacre for Appellant |
| Judgment: 19 March 2012 at 11.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
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REASONS OF THE COURT
(Given by Stevens J)
Introduction
On 20 July 2011 the appellant, Mr Butt, was found guilty by a jury of one charge of manufacturing the Class A controlled drug methamphetamine. He was sentenced by Judge Perkins in the District Court to three years imprisonment.[1] The Crown accepted, and the Judge sentenced the appellant on the basis, that his involvement was as a party to the manufacture. The appellant appeals against that sentence on the basis that it is manifestly excessive.
[1]R v Butt DC Auckland CRI-2010-404-94, 31 August 2011.
Mr Dacre, counsel for the appellant, informed us that during the course of the trial the appellant had successfully obtained a discharge under s 347 of the Crimes Act 1961 on a charge of supplying the methamphetamine, which was the subject of the manufacturing charge.
Factual background
The appellant was part of a small group whose members have been charged with a number of methamphetamine-related offences. The charges were laid following termination of a police investigation known as Operation Heller in late 2008. The present appeal concerns a charge related to a “cook” between 15 and 18 October 2008. Much of the evidence arose from the interception of telephone calls and text messages.
The evidence against the appellant consisted mainly of two telephone calls between himself and another member of the group, Mr Hunter, who was at a higher level in the methamphetamine manufacturing operation.[2] During the first telephone call made during the course of the cook, the appellant stated that the product was not quite ready. There was also a discussion about when it might be available for delivery. Mr Hunter said he was concerned about “only two things”, namely, “[j]ust colour and the weight”. In the second telephone call 70 minutes later, the appellant told Mr Hunter that the process was finished. Mr Hunter asked if the product was “white and dry”, to which the appellant responded in the affirmative. There followed a discussion about when the appellant and Mr Hunter might meet up. That proved not to be possible that evening because, as Mr Hunter said, “[t]here’s a lot of Police activity around the cemetery, a hell of a lot”.
Sentencing
[2]Mr Hunter was sentenced to six years imprisonment: R v Hunter DC Auckland CRI‑2010‑404‑94, 31 August 2011.
The Judge imposed a final sentence of three years imprisonment. The Judge said he preferred not to take what he referred to as a “mathematical” approach to sentencing.[3] While the sentencing notes do not identify the initial starting point or the quantum of the discount given, the Judge’s reasoning can be deduced from the sentencing notes as a whole.
[3]At [15].
On the question of the starting point, the Judge noted that counsel for the appellant accepted that the offending fell within band 2 of R v Fatu of four to 11 years imprisonment, although at the lower end.[4] The Judge emphasised that the appellant was “not the primary offender”.[5] Ultimately, Judge Perkins concluded that having regard to the appellant’s “overall culpability and criminality”, a starting point of four years imprisonment was too high.[6] This seems to indicate that a starting point of under four years was adopted.
[4]At [11]. See R v Fatu [2006] 2 NZLR 72 (CA) at [43(b)].
[5]At [15].
[6]At [14].
No detailed consideration was given to personal aggravating and mitigating factors. However, the Judge seems to have thought that some discount was appropriate for remorse,[7] although the extent of this discount is not made clear. The Judge also recorded his view that it was unnecessary to consider an uplift for previous methamphetamine convictions.[8]
Issue on appeal
[7] At [15].
[8] At [12].
Mr Dacre accepted that the starting point in fact ended up as the final sentence. No point on appeal arose in relation to the starting point. Counsel also accepted that the Judge was correct to sentence the appellant on the basis that his culpability was as a party to the manufacture of a commercial amount of methamphetamine. While there was some debate as to whether the amount produced was 50 grams, as contended by the Crown, there was no doubt that the amount was appropriately classed as commercial.
Counsel also accepted that the Judge properly considered the overall context. This included the fact that the appellant was involved in the manufacture as a party and was also a go-between or courier between Mr Hunter and the actual cook.
But the real issue was whether a starting point of lower than three years imprisonment ought to have been used. Mr Dacre argued that the Judge did not take sufficient account of the appellant’s status as a party to the offending. Counsel submitted that R v Fatu requires sentencing judges to consider “the role of the particular offender in the manufacturing ring”.[9]
[9]R v Fatu at [43].
Mr Raftery for the Crown submitted that the Judge did take the appellant’s lower level of offending into account. He further submitted that the sentence was at the lower end of the available range, given the particular circumstances and the appellant’s role. Counsel identified R v Johnston,[10] R v Rua[11] and R v McDonald[12] as cases where parties to the manufacture of methamphetamine at a band two level had received starting points of between three and a half to five years imprisonment.
Discussion
[10]R v Johnston HC Auckland CRI-2005-004-5100, 11 April 2006.
[11]R v Rua HC Auckland CRI-2005-004-2576, 30 October 2007.
[12]R v McDonald HC Auckland CRI-2006-092-7287, 31 October 2006.
There is no merit in this appeal. There is no basis for the claim that the Judge did not take into account the appellant’s lower level of offending and culpability. The Judge referred at several points in his sentencing notes to the appellant’s reduced culpability as a party.[13] In particular the Judge accepted that the appellant had “a far lesser role in [the] manufacture” and “did not carry out the manufacturing [him]self”. We are satisfied that, even allowing for the discount for remorse, the starting point must necessarily have been set below the range set for band two offending involving manufacturing of methamphetamine which, as we have noted earlier, is four to 11 years imprisonment. The appellant’s level of offending and culpability was given proper weight.
[13] At [3], [11], [12] and [15].
We are also satisfied that, in a more general sense, there is no basis upon which it can be argued that the appellant’s sentence was excessive. As Mr Raftery identified, there is ample authority to support the proposition that those charged with being a party to the manufacture of methamphetamine at a band two level can expect to receive a starting point of approximately three and a half years imprisonment. By any measure the final sentence of three years imposed on the appellant was lenient.
Even if the sentencing had been approached on the basis of the supply to Mr Hunter of a commercial amount of methamphetamine, the minimum starting point would have been three years imprisonment. This follows from the application of the band 2 guideline of three to nine years imprisonment for supply offending.[14] There is no basis upon which a sentence of three years imprisonment on a manufacturing charge in the present case could be said to be manifestly excessive.
Result
[14] Fatu at [34(b)].
For the above reasons the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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